The Nation-State is Not Our Friend: On Celebrating the Repeal of Section 377

Uncritically celebrating the repeal of Section 377 (India’s anti-sodomy law) as a milestone of decolonization obscures the complicity and exclusion inherent to the nation-state.

  Section 377 repealed by the Supreme Court of India on Sep 6th, 2018, overturning British era law that criminalized consensual homosexual sex. Image: Reproduced/Twitter

Section 377 repealed by the Supreme Court of India on Sep 6th, 2018, overturning British era law that criminalized consensual homosexual sex. Image: Reproduced/Twitter

The repeal on September 6th of Section 377, India’s 183-year-old anti-sodomy law, is rightfully being celebrated as a watershed moment for Indian gays and lesbians – the culmination of intensive legal work of activists in India through the last 18 years. Indeed, the repeal of 377 was an emotional event for me as a queer woman who lives in Canada and retains a set of cultural, familial, and political connections to India. The stark brilliance of the judgment’s language, including its defence of the Constitution as a “living document” meant to serve its subjects, seems particularly crucial as governments across the West and in India become increasingly authoritarian.

Despite my excitement about the repeal of the law, however, I’ve grown increasingly wary of a certain trend of celebratory reactions in the Indian diaspora which centres on the colonial roots of 377 without a sustained critique of the nation-state. In this essay, I look at some of these reactions and argue that, in separating the legal history of 377 from its role in the development of the modern Indian nation, these reactions amount to an untenable form of nationalism.

In 2013, the Indian Supreme Court’s decision to uphold Section 377 as constitutional was met by sections of Indians living in the West not only with an understandable form of despair, but a troubling kind of postcolonial frustration. A deluge of articles flooded the internet, arguing that India remained colonized through the retention of this law. Writing in The Guardian, Priyamvada Gopal encapsulates this logic well, arguing that “[a]s long as India continues to adhere to this sexual hierarchy it cannot be said to be fully culturally independent of Victorian Britain.” She further describes the retention of 377 as a form of “servile adherence to colonial bigotry.”

In light of such reactions, it follows that the recent repeal of 377 is being celebrated by many as a form of decolonization — an indication that India is (finally) releasing itself from the homophobic sexual mores of the British Empire. Samanth Subramaniam, in his September 6th article in The New Yorker, is critical of the turn towards Hindu myth as evidence of India’s supposedly queer past. Nonetheless, he argues that “the Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past.” The repeal is thus perceived as a form of postcolonial progress in a country that “decolonizes itself slowly.”

It is the popularity of this tweet, however, written by a Pakistani Brit but nonetheless taken up eagerly by swathes of queer Indians in the West, that has concerned me the most.

Though the desire to refigure pre-colonial India as a sexual utopia is, as Subramaniam argues, troubling on a political level, I am more concerned here with how such a myth obscures the very nature of the nation-state itself. In other words, do we assume that a utopian queer past might inform the current or future state of the Indian nation? And, in doing so, do we ascribe a certain benevolence — of friendliness — to the nation-state itself?

  Siva Temple, Prambanan, Central Java. Image: Dharma from Penang, Malaysia/Wikimedia Commons

Siva Temple, Prambanan, Central Java. Image: Dharma from Penang, Malaysia/Wikimedia Commons

To some extent, tracing the law back to Empire is an important form of historicization that might help us understand how and why 377 remained in India’s constitution post-Independence. Retaining an awareness of the law’s colonial roots, for instance, reminds us of the sheer length of time the law has been in place, and thus the legal and social hurdles faced by activists seeking its repeal. But the framing of the repeal as a form of decolonization – or as part of a larger decolonizing process – does not historicize the law. Rather, this framing relies on notions of moral purity that permanently situate India in a pre-colonial past, prior to its development into a modern nation-state. Even if we are willing to accept the possibility that such a utopian queer past did, in fact, exist, it is dangerous to assume that this past is somehow compatible with the desires of the modern nation-state. In assuming that India might now “return” to its pre-colonial state, we risk portraying the Indian nation itself as a benign, potential ally to queers in its unadulterated, “decolonized” form.

While I focus specifically on India here, my wariness about the potential “friendliness” of the nation-state extends much further. Theories of nationalism remind us that all nation-states are violent, regulating the behaviour of their citizens and creating a set of “good” and “bad” citizens to fortify their borders. Contemporary examples of such regulation are abundant: the tightening of European borders in reaction to the “refugee crisis”, the establishment of camps to separate families at the U.S.-Mexico border, and recent killings of protestors in Gaza by Israel all speak to the function of nationalistic violence. In India, such violence has persisted long after Partition. The 2002 massacre of Muslims in Gujarat, the militarization of Kashmir, and ongoing communalistic violence against Dalits and Muslims all work in service of the nation’s borders. Any gesture towards the supposed benevolence of the nation-state should thus give us pause. Upon whom does India grant its benevolence and why?

Indeed, by foregrounding the potential benevolence of the Indian nation in our reactions to the repeal of 377, we – as queers in the diaspora – align ourselves with the homophobes in India who see Western cultural influence as a threatening form of “Westernization.” In 2013’s Kaushal v. Naz Foundation, for instance, the Supreme Court concurs that the case for overturning 377 relied too heavily on similar verdicts in Western democracies and thus represented a form of Westernization anathema to a homogenous Indian society. This logic is essentially the same as that which leads us to believe India is decolonizing through the repeal of 377: Westernization, in other words, poses a threat to a nation that might in its authentic state function as a benevolent one.

What is neglected in the quest for such authenticity is the question of why India retained the law 71 years into its independence. Of what use was institutionalized homophobia to the incipient nation? What forms of masculinity and sexual purity did the retention of the law aspire to preserve, and which forms of nationalism did it strengthen? Indeed, the history of the law suggests that it is intimately tied to the creation of a coherent nation-state: the law came into effect only after the nationalization of the East India Company and transfer of the colony to the British Crown upon the Mutiny of 1857. Introduced into the criminal code under Thomas Macaulay, the law was seen as a means of preventing the moral corruption of British soldiers sent to or settling India, and of curbing the sexual practices of which colonized people were considered predisposed. 

Inasmuch as the law was a means of regulating and disciplining all subjects of the British Crown, the retention of the law in the Indian Criminal Code compels us to consider the link between institutional homophobia and the development of the nation itself. Which forms of colonial governance remained intact precisely in order to allow “the soul of the nation, long suppressed, [to] find utterance,” as Nehru hoped for on the eve of Independence?

Crucially, the forms of violence we see in India today are fundamentally connected to nationalist impulses that kept 377 alive for so many years. Writers and activists in India have discussed at length the risks of celebrating the repeal of 377 while neglecting the violence of Hindu nationalism under the BJP. In her recent article “Grey Shades of the Rainbow,” Poorva Rajaram convincingly argues that the repeal of 377 might overshadow the persistent struggles facing women, Muslims, and Dalits living under the BJP, and refigure the government as a benefactor to a select few, relatively privileged gay men. Gopal, too, draws a clear link in her 2013 article between the patriarchal values that undergird institutional homophobia and the rise of Hindu nationalism, arguing that both risk creating an “untenable contradiction” between the egalitarianism of the Constitution and violently communalist practices on the ground. 

But the past and present violence against women, Muslims, Dalits, and queers — though distinct in method and effect — are each done in service of the nation-state and there is, in the end, no contradiction between the egalitarian goals of the nation and the violence the state enacts upon some of its citizens. Institutional homophobia fortifies the nation’s borders, but the absence of this homophobia does not weaken the borders themselves. Critiques of gay imperialism (Massad 2002), homonationalism (Puar 2007), and institutionalized tolerance (Brown 2006) remind us that even the most (supposedly) gay-friendly policies of Western democracies enable the scourge of nationalism and drive contemporary forms of racist and imperialist practices.

I am sympathetic to the desire for queer Indians in the diaspora to look back to the “homeland” as a potentially benevolent place, a friend in the racial and sexual struggles some of us face living in the West. But it has become clear in the last few years that the Indian diaspora plays an increasingly troubling role in fortifying the Indian nation-state. The violence that erupted earlier this year at the World Hindu Congress in Chicago suggests that Hindus living in America bolster the rise of Hindu nationalism and spread it beyond Indian borders. Similarly, the existence of Hindus for Trump is notable not only for the group’s pro-America views but for the way these views might easily align with India’s own nationalistic desires. In celebrating the repeal of 377, those of us who live outside India must remain wary of how our desires for recognition contribute to the fortification of the nation-state, restricting all of us by the limitations of its borders.


Nisha Eswaran is an academic and writer based in Toronto. You can follow her on Twitter @EswaranNisha.